In Green v. Price Chopper, Inc., 2018 NY Slip Op 05578 (App. Div. 2nd Dept. Aug. 1, 2018), a personal injury trip-and-fall case, the court held that the defendant supermarket was not entitled to summary judgment on liability.
Plaintiff testified that she tripped and fell over a raised portion of a rubber mat near the supermarket entrance; plaintiff’s husband testified that the raised portion of the mat was “two … fingers high”; and defendant’s store manager testified that the bump was about half an inch high.
The court summarized the law:
Generally, the issue of whether a dangerous or defective condition exists on the property of another depends on the facts of each case and is a question of fact for the jury (see [*2]Trincere v County of Suffolk, 90 NY2d 976, 977; Santacruz v Taco Bell of Am., LLC, 128 AD3d 793). However, a property owner may not be held liable for trivial defects not constituting a trap or nuisance over which a pedestrian might merely stumble, stub his or her toes, or trip (see Trincere v County of Suffolk, 90 NY2d at 977). In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” (id. at 978 [internal quotation marks omitted]; see Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 77).
“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact”[.]
Applying the law, the court held that “the evidence submitted by the defendants, including a surveillance footage of the incident, was insufficient to demonstrate, prima facie, that the condition of the mat was trivial as a matter of law and therefore not actionable[.]” and, therefore, the Supreme Court should have denied defendants’ motion for summary judgment dismissing plaintiff’s complaint.